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House of Assembly - Fifty-Third Parliament, First Session (53-1)
2014-12-04 Daily Xml
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Courts Administration (Directions) Amendment Bill

Introduction and First Reading

Ms BEDFORD (Florey) (10:48): Obtained leave and introduced a bill for an act to amend the Courts Administration Act 1993. Read a first time.

Second Reading

Ms BEDFORD (Florey) (10:49): I move:

That this bill be now read a second time.

The evolution of the Westminster system, from which our traditions of government originate, involve both the separation of powers and checks and balances upon them. The parliament has the power to legislate and the power of the purse. Executive government is accountable to the parliament; it cannot purport to make laws, impose taxes or otherwise coerce obligations or spend public moneys without the approval of parliament. Equally, parliament may only ultimately direct the executive through legislation or, according to the constitutional convention, by the lower house expressing a lack of confidence in the ministry.

Similarly, both parliament and the executive are subject to law as administered impartially by the judiciary. Parliament may not impinge upon judicial power and the executive may not intervene in the deliberations of the court. Indeed, the concept of the separation of powers in Australian constitutional practice is wider, placing limits on parliamentary sovereignty by allowing for unconstitutional laws to be invalidated. We were, in fact, the second country in the world after the United States to empower our superior courts in this way.

I mention all of this because it is germane to the bill I bring before the house. Decades ago, in an attempt to better delineate the way in which the executive, legislature and judiciary intersect, the parliament enacted the Courts Administration Act. The purpose behind this law is to clarify the roles of the courts and the executive government in relation to the administration of the courts system and, in particular, the management of court properties and the delivery of court services.

In effect, this act provides the courts with substantial autonomy on matters which would, in the ordinary course of affairs, be within the purview of the executive. It does this through the creation of the Courts Administration Authority, overseen by a Judicial Council consisting of the Chief Justice, the Chief Judge of the District Court and the Chief Magistrate. Under section 10 of the act, the Judicial Council is:

…responsible for providing, or arranging for the provision of, the administrative facilities and services for participating courts that are necessary to enable those courts and their staff properly to carry out their judicial and administrative functions.

The authority, which in effect means the judges who sit on the Judicial Council, have a series of powers enumerated in the legislation. It is notable that, while they can enter into contracts under section 11(2), they are specifically prohibited from acquiring or disposing of an interest in real property without the Governor's consent, which means the agreement of cabinet. Instead, under section 15, they are invested with the care, control and management of the real property of the Crown that has been reserved for the use of the courts. Land and buildings may be reserved for court uses by a proclamation of the Governor.

All of this is generally a good thing. If judicial independence is to be maintained, it must be funded without political interference, and an autonomous Courts Administration Authority made up of senior judicial officers from the state's principal courts is a good way for this to be realised. However, this should not come at the expense of the responsibility of the executive to manage the state's budget and assets, nor at the expense of the parliament's role in scrutinising how taxpayers' money is spent, or access to justice by the community.

Of course, I recognise that, like other statutory bodies, the authority is subject to general financial management principles and is required to provide an annual report to parliament. In recent times, the mooted closure of two court complexes has been proposed by the authority as a cost-saving measure. Putting aside the question of how real these savings would be, in my mind there is a distinct and fundamental flaw in the statutory scheme that simply exempts the authority from reasonable direction by the executive in the management of court properties and the parliament in the scrutiny of expenditure.

The taxpayers of this state have invested considerable moneys in both the Holden Hill and Port Adelaide court complexes. They were both purpose built and, in the case of Holden Hill, form part of an integrated complex with the nearby police station. In addition to agencies of the Crown other than the courts, community services and members of the legal profession have also co-located around these sites.

My inquiries have established that legal practitioners do not want to see the courts close. All of these services and the legal practitioners, and the public who access justice at these sites, will feel the brunt associated with the closure of the courts by the authority under the current act. For example, I have no doubt that, if the Holden Hill court closes, police will have additional costs and time-consuming restraints.

Unlike governments or parliamentary representatives, the Courts Administration Authority is not subject to electoral accountability—the type of accountability that means you must consult widely before closing schools, hospitals or other significant public facilities. Consultation with the community is needed, as demonstrated by the petitions already tabled in this place by the member for Port Adelaide. The member for Torrens, in whose seat Holden Hill is located, is already collecting petitionary signatures to be tabled in the next session.

It is those in this place who represent and address community expectations who have a role in making sure justice is available to all. The current act already makes it clear that the Judicial Council does not have the freedom to acquire or dispose of property or buildings without the agreement of cabinet. I acknowledge that this is not what the judges are talking about. They are talking about the closure of the courts but not proposing to dispose of the buildings. They are leaving that unsolved situation to the government. Yes, this is technically consistent with the act, but it is very much against the spirit in which it was made. The provision of government services always relies upon the provision of facilities.

An obvious example, that my colleague the member for Port Adelaide will no doubt discuss in more detail, is the government's desire to regenerate Port Adelaide. This has been a complex problem that has confounded governments of all persuasions and the local council for many years. Similar considerations apply in the case of Holden Hill, which is located at a significant centre and has a wide catchment in the northeast. All of this because of an anomaly in the act. An anomaly, I might add, that no other state has because no other state, so far as I can see, has provided their courts with the level of autonomy in the administration of public assets as we have in South Australia.

My bill will address this anomaly by introducing a power for the Attorney-General to issue directions in relation to the management of properties assigned to the authority. This will enable the government to provide directions of a general nature to the authority and ensure that the closure of any court complex will require the agreement of the cabinet, which is otherwise responsible to parliament for the management of public assets and the expenditure of taxpayer funds.

Having concluded that part of my speech, I note that on radio this morning the Chief Justice, Christopher Kourakis—although I only have a copy of the transcript in electronic form—did discuss this bill being introduced in parliament today and did undertake to say that if funds were made available to him to maintain these buildings that he would in fact maintain them. So, that is something that I welcome. In the meantime, I look forward to discussion on the bill, which, as I said, I think is a very mild way of ensuring that the community, through the parliament, has a say in how courthouses and the properties around courts are used and continue to be made available to the public so that access to justice, which is what we all want to see happen, is as fair as it can be. I commend the bill to the house.

Debate adjourned on motion of Mr Gardner.

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